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Election Law

by Joshua A. Douglas, law professor at the University of Kentucky College of Law. Professor Douglas specializes in election law and voting rights, with a specific focus on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, Election Law Stories.

When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.

That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.

Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)

by Ngozi J. Nezianya, JD/MBA Candidate, Northwestern University; President, ACS Student Chapter at Northwestern University School of Law; Next Generation Leader and Student Member, ACS National Board of Directors

Imagine a world in which registering to vote took only a simple form and no more than a few minutes of your time. Imagine a world in which the myriad ways that our government entities use to identify you could ensure that you get a say in exactly who does the verifying. Imagine a world in which casting your ballot could be completed on your way to work, on your lunch break or on your way home before you pick up the kids from school.

Yet, despite those positive developments, one need only scratch the surface of these rosy data to reveal the discordant truths that coexist in our democratic process. Seven states maintain strict laws that require forms of photo identification that 11 percent of eligible voters do not have. Federal law requires states to maintain updated voter registration lists; however, when those laws result in the purges of millions of citizens from the rolls every two years, various states and their officials seem to disproportionately remove the poor, mistakenly remove Asian and Hispanic voters because they matched their surnames to the wrong people and in some cases outright intimidate black voters by sending police officers door-to-door to challenge those voters’ registrations. (And those are not even the most egregious purges.) Lastly, countless stories have documented how the closure of polling locations in heavily populated voting districts and the shortening of early voting periods across the country have caused citizens to wait up to five and seven hours in the blistering sun to exercise a right that the Supreme Court, dating back to 1966, had previously deemed “fundamental.” In other words, the extraordinary degree of variance at the other end of the voting experience skews our democratic process toward dystopia.

Election Day, every school kid learns, is the one day when we are all truly equal and when we come together to make decisions that impact the whole country.

But real equality – and real confidence that we can achieve it – requires that the ballot box be readily accessible to every eligible voter and that every vote be counted as cast. To make that happen, we need elections officers, poll workers, and rank-and-file voters themselves to administer the process legally and engage in it fairly. It also helps to have candidates, particularly for the commander-in-chief’s office, who follow and respect the rules.

That is why it is especially troubling when politicians display disdain for the electoral process by urging their supporters to engage in illicit behavior that games the system.

Last month, Donald Trump called on his supporters to up-end the rules. “I hope you people can sort of not just vote on the eighth [but] go around and look and watch other polling places and make sure that it is 100 percent fine,” he told attendees at a rally in Pennsylvania. “We are going to watch Pennsylvania. Go down to certain areas,” he warned, “and watch and study, make sure other people do not come in and vote five times.”

Julie Ebenstein at the ACLU Blog reports a federal court held the system currently in place for electing school board members in Ferguson, Mo. violates the Voting Rights Act and systematically disadvantages African-Americans.

Days after issuing an injunction prohibiting the Education Department from enforcing antidiscrimination guidelines intended to protect transgender students, a lawsuit aiming to deny expanded access to medical care for transgender Americans has landed on the desk of Judge Reed O’Connor, writes The Editorial Board at The New York Times.

Fiona Ortiz and Alistair Bell explain the consequences of a 2-1 decision from a panel of the 6th U.S. Circuit Court of Appeals that upheld a law eliminating Ohio’s early voting period in an article for Reuters.

The Department of Justice submitted a brief to a class action law suit asserting the United States’ current bail system unfairly discriminates against the poor, reports Lauren C. Williams of Think Progress.

Members of the U.S. Senate and House of Representatives will gather tomorrow to award the foot soldiers of Bloody Sunday, Turnaround Tuesday and the final Selma to Montgomery March with the Congressional Gold Medal. This award constitutes the highest civilian honor bestowed by Congress and marks a fitting tribute to the brave men and women who risked life and limb so that “every American citizen would be able to exercise their constitutional right to vote and have their voices heard.”

Yet, however befitting and overdue this award may be, we must not accept it as a substitute for meaningful legislative action to safeguard the fundamental right to vote.

Minority voting rights are perhaps more imperiled today than at any time since these brave marchers gathered at the Edmund Pettus Bridge in 1965. Just three years ago, the U.S. Supreme Court gutted a key provision of the Voting Rights Act, despite four reauthorizations and thousands of pages of congressional findings that showcased why the law was still needed. The 2013 decision, Shelby County v. Holder, dismantled the VRA’s coverage formula, which determined which states and local jurisdictions were required to gain approval from the Department of Justice or a federal court before making changes to their electoral laws and procedures due to histories of racial discrimination in voting.

Many of the states that would have once needed to seek preclearance from the DOJ acted within hours of the Supreme Court’s ruling, implementing onerous voting restrictions, such as voter ID laws, that had the intent and effect of burdening minority access to the polls. These laws threaten to disenfranchise millions of people across the country and would previously have been barred by the Voting Rights Act. Scarily, without congressional action, 2016 will likely mark the first presidential election in more than 50 years without the full protections of the Voting Rights Act.